NSA reform falters as House passes gutted USA Freedom Act

The House passed legislation Thursday—ironically called the USA Freedom Act—that continues to allow the National Security Agency the ability to sift through the phone metadata of every phone call made to and from the United States.

The so-called "reform" measure comes a year after the Guardian revealed the snooping program with documents supplied by NSA whistleblower Edward Snowden. Civil rights advocates withdrew their support for the package, H.R.3361, after the Obama administration pressured the Republican leadership to water it down.

"The ban on bulk collection was deliberately watered down to be ambiguous and exploitable," said Harley Geiger, an attorney with the Center for Democracy & Technology. "We withdrew support for USA Freedom when the bill morphed into a codification of large-scale, untargeted collection of data about Americans with no connection to a crime or terrorism."

The White House doesn't see it that way. "The bill ensures our intelligence and law enforcement professionals have the authorities they need to protect the Nation, while further ensuring that individuals’ privacy is appropriately protected when these authorities are employed," the White House said.

The measure passed 303 to 121 in the House. The administration urged the Senate to follow suit. Senate Judiciary Committee Chairman Patrick Leahy, a Democrat from Vermont, suggested that the legislation faces a tougher sell in the Senate.

"I was disappointed that the legislation passed today does not include some of the meaningful reforms contained in the original USA Freedom Act," he said. "I will continue to push for these important reforms when the Senate Judiciary Committee considers the USA Freedom Act next month."

Under the legislation passed Thursday, instead of the NSA collecting and housing the metadata from every phone call made to and from the United States, that data will remain in the hands of the telecoms. Previously, there were no laws barring the NSA from searching the data carte blanche, although the agency promised it would only do so if it had a "reasonable, articulable suspicion" against a terrorism target.

The USA Freedom Act, however, demands that the NSA get approval for a search from the Foreign Intelligence Surveillance Court before demanding that the telecoms hand over metadata. However, no "probable-cause" Fourth Amendment standard is required to access the database.

"The result is a bill that will actually not end bulk collection, regrettably," said Rep. Zoe Lofgren, a Democrat from California who voted against the bill.

Under the act, a database search inquiry is allowed if it is "a discrete term, such as a term specifically identifying a person, entity, account, address, or device." Until Tuesday, an allowable search under the USA Freedom Act was defined as "a term used to uniquely describe a person, entity, or account."

That nuanced change, lobbied for by the Obama administration at the 11th hour, was among the biggest reasons civil rights groups and scholars objected to the measure. They said the new language was vague and perhaps would allow the NSA to ensnare the metadata of broad swaths of innocent people in violation of their constitutional rights.

“In particular, while the previous bill would have required any request for records to be tied to a clearly defined set of ‘specific selection terms,’ the bill that just passed leaves the definition of 'specific selection terms' open. This could allow for an overly broad and creative interpretation, which is something we've certainly seen from the executive branch and the FISA Court before," said Elizabeth Goitein, a co-director of the Brennan Center's Liberty and National Security Program.

David Kravets / The senior editor for Ars Technica. Founder of TYDN fake news site. Technologist. Political scientist. Humorist. Dad of two boys. Been doing journalism for so long I remember manual typewriters with real paper.